RECLAIMING AMERICA: THE RIGHT TO VOTE

LONG WAY HOME:  RECLAIMING DEMOCRACY

A CONSTITUTIONAL AMENDMENT: 

THE RIGHT TO VOTE

  

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States.” 

Justice Antonin Scalia for the Majority, Bush V. Gore 2000

It came as a surprise to many informed citizens when the Supreme Court ruled in Bush V. Gore that Americans did not possess a constitutional right to vote for the president of the United States.  It seems the constitution makes reference to the right to vote but not specifically in regard to federal elections. 

Ratified in 1870, the fifteenth amendment prohibits denying the right to vote on the basis of “race, color or previous condition of servitude.”  In 1913 the seventeenth amendment required the election of United States Senators.  Prior to that amendment senators could be chosen by a variety of means.  In 1920 women were granted the right to vote or rather the denial of the right to vote on the basis of sex was prohibited.  In 1961 residents of the District of Columbia were granted the right to vote in presidential elections – or rather the right to vote for members of the Electoral College.  In 1964 the poll tax was prohibited.  In 1971 the age requirement for the right to vote was lowered from 21 to 18. 

In the year 2000, with the Electoral College hanging by the loose chads of Florida in the presidential election, the Supreme Court reviewed all constitutional references and decided that there was in fact no right to vote in national elections.  A thin majority of justices came to this conclusion because it facilitated their purely partisan decision to award the election to fellow Republican George W. Bush.  They seemed to recognize how specious their argument was when they also pleaded with future justices not to give their decision the weight of precedence. 

Why was it important that the Supreme Court deny the right to vote?  Because, if the citizens of Florida possessed a right to vote, then the court could not deny that right by pre-empting a full recount in Florida.  The court could not end the recount process and choose the next president by a five to four majority.  That is exactly what the court did. 

We are left with a hole in the constitution the size of democracy itself.  If we follow the court’s reasoning, a theoretical right to vote cannot be denied on the basis of age above 18, race, color, sex or the ability to pay a poll tax but it can be denied for any other reason.  In the case of Florida the right to vote could be denied for expediency or partisanship. 

Does anyone really believe that the court’s decision to cut off the recount would have been the same if it awarded Albert Gore the presidency?  I don’t think so. 

As to the court’s plea to negate the decision’s precedent value, it is about as useful as a “theoretical” right to vote.  The Supreme Court delivers the law of land.  One of the few judicial powers it does not possess is the power to negate precedence. 

In the wake of Bush V. Gore the nation’s leaders should have rallied to reaffirm the institutions of democracy.  Instead they praised the wisdom of the founders in creating such anachronisms as the Electoral College.  Consequently, in the year 2016 we awarded a candidate with 3 million votes less than his opponent the White House.  With all due respect, this is not wisdom; it is idiocy.  That we have allowed a minority of voters to elect the president twice in less than two decades is a disgrace to all we hold dear.  Moreover, those two mistaken presidencies will likely be recorded in history as supreme catastrophes. 

If we wish to restore democracy in America it is imperative that we affirm the right to vote.  We can then proceed to the principle of one person, one vote or equivalent value of every vote.  That will be a hotly contested issue. 

Who can stand up in America and proclaim that an otherwise qualified individual does not possess the right to vote?  There are those who will advance contorted arguments of every flavor and description to justify gerrymandering, the Electoral College, special identification procedures and even unequal access to voting across districts but there are very few so bold as to proclaim that every law-abiding individual of age should not possess the right to vote. 

Only the Supreme Court has done so and yet they did so in such a sly and devious manner that few Americans have any idea that it is the law of the land.  We do not have a right to vote.  When it matters most – in the election of a president – we do not.  Antonin Scalia and his colleagues on the Supreme Court may like it that way.  Common citizens should not.  They have nullified the power of the people and they will continue to do so until we stop them. 

We must rectify this affront to the American republic.  We must advance a constitutional amendment so simple and pure that it defies anyone the impudence of denying it.  I propose the following: 

Section 1:  All citizens aged 18 or older possess the right to vote in appropriate elections of government officials and this right shall not be denied or abridged by the United States or any state or local authority. 

Section 2:  Congress shall have the power to enforce this article by appropriate legislation. 

Let the arguments begin. Those who stand in favor can be counted on as defenders of the democratic form of government.  Those stand against are the enemies of democracy.  While it seems as simple and obvious as gravity, the opposition will hire the finest and most expensive law firms to prevent its passage at all cost – just as they did the equal rights amendment. 

The first argument will likely concern those who have lost the right to vote because they were convicted of serious crimes and are either behind bars or serving periods of probation or parole. 

Certainly we could exempt the prisoner and parolee population but that would violate the principle of universal suffrage.  If the right to vote can be taken away it is no longer a right; it is a privilege.  We do not strip the imprisoned of the right to speak.  We do not revoke the right to worship as one pleases.  We do not take away the right to medical care – a right that is not yet recognized in America.  Why then should we take away the right to vote? 

Of course we do deny prisoners the freedom to live in open society and prisoners and parolees the right to possess firearms in the greater interest of society at large and prison officials in particular.  Is there an equivalent interest with the right to vote?  Despite the fact that we imprison more of our citizens than any other civilized nation on earth, those behind bars represent only .007 percent of the population.  There is no evidence to suggest that this small number would have a significant effect on elections.  To the extent that it could have an effect, there is no evidence to suggest that it would be detrimental to society.  While there are more individuals on parole than in prison, they have paid their debt and are entitled to their rights. 

The enemies of democracy will make this argument not because they think it’s important or because they think it is right.  The fact is they don’t care whether or not prisoners and parolees obtain the right to vote.  Most of them will not vote anyway.  They will make the argument because they believe it will provoke a knee-jerk reaction in good, law-abiding citizens.  They make the argument because it will empower them to go on denying the right to vote to people of color and people who are not likely to vote in their interest. 

What is their interest?  They represent the moneyed class, plain and simple.  They are the one-percent that the anti Wall Street movement and Bernie Sanders drew attention to in their respective movements.  They are the privileged individuals and corporations that are accustomed to controlling the strings of our government. 

The simple right to vote will threaten their control.  The simple right to vote will empower the people to their detriment. 

Those who defraud elections to their advantage have long exploited the parolee population.  While the recent trend is for voting rights to be restored upon completion of sentence, in the year 2000 Florida used its parolee list to disenfranchise tens of thousands of black voters.  That is the dirty little secret behind the election of George W. Bush.  Federal courts, including the Supreme Court, have long yielded the administration of elections to the states.  That would end with a constitutional recognition of the right to vote. 

Regardless of how you may feel about prisoners and/or parolees voting, it is not a reason to deny the fundamental right of all citizens to vote. 

What other arguments are there against a constitutional right to vote?  Let’s see.  There are none – at least none that are not flagrantly invalid or obviously tainted.  You could argue for states rights but that would conjure memories of how the Southern states denied blacks the right to vote for over a century.  No one who believes in the principles of democracy can seriously argue that an individual right to vote should be subject to the discretion of any given state.  In a democratic government no state should deny a person’s right to vote.  Ever. 

Had this principle been in place the disenfranchisement scheme in Ohio in the 2004 election – a scheme that may well have decided the presidential election in favor of Bush over Kerry – would have been subject to legal recourse.  Moreover, it could have been challenged in court prior to the election. 

The disenfranchisement schemes that have haunted our elections for decades are still in place.  They are being challenged in court but too often the challenges are falling because there is no federal recognition of the right to vote. 

That must change.  A society that does not embrace the right to vote has no right to call itself a democracy. 

Jazz. 

“Americans lack the right to vote.”  By Niko Bowie. Yale News, November 16 2005. 

Jack Random is the author of the Jazzman Chronicles as well as a variety of fictional works, including a trilogy of novels entitled Pawns to Players:  The Chess Series.  He is retired and living in central California.